Keeffe-Martin, M. (2001) Legislation, case law and current issues in inclusion: An
analysis of trends in the United States and Australia. Australia and New Zealand Journal
of Law and Education. 6, 1&2. pp 25-46.
Parent, civil rights, education and advocacy groups initiated a socio-political movement
towards inclusive education in the 1960’s by challenging education authorities to include
students with disabilities in regular school settings. They argued from a ‘rights-based
platform that reflected the ideals of equity and social justice expressed in a number of
international statements including, for example, the Universal Declaration of Human
Rights (1948) and the United Nations Convention on the Rights of the Child (1972). It
was not until legislative changes were made in the United States, however, that schools
were required to educate students with disabilities alongside their non-disabled peers to
the maximum extent possible. Since then, special education and the management of
inclusion in schools have become public and accountable through the law and the pace of
litigation over issues that relate to inclusion, student rights, disability and discrimination
significantly increases each year (Osborne, 2000).
This article analyses and compares legislation and appeal processes that relate to
disability discrimination and the management of inclusion in schools in common law
countries including the United States and Australia. Specific laws and rights of appeal
against administrative decisions and school actions that relate to inclusion are identified.
Finally, the Australian disability discrimination legislation from both State and
Commonwealth jurisdictions is described and analysed through the interpretation of case
law. In particular the concepts of ‘reasonable accommodation’ and ‘unjustifiable
hardship’ are discussed in relation to the way that principals manage inclusion in schools.
The description of the law and appeal processes used in the United States provide an
international, contextual basis for the analysis of Australian legislation, particularly the
Disability Discrimination Act, 1992 (Cth.). Australia’s relatively low level of litigation in
the area of special education belies the fact that the number of cases progressing to full
court hearings is increasing and that the cases are becoming more complex (Walters,
1999). is of trends in the United States and Australia. Australia and New Zealand Journal of Law and Education. 6, 1&2. pp 25-46.